76

Advantages of this Security.

[BK. I. The security and speedy remedy for the recovery of their debts which these recognizances gave to merchants soon led others not merchants to use them; for other men, finding from observation that it was much of the same nature with judgments given in Westminster Hall, but obtained with infinitely less trouble and expense, out of regard to their own interest and quiet, began to adopt this mode of securing their contracts, and by degrees it became to be improved into a common-law assurance (j).

"The addition of the King's seal," says Bacon, in his Abridgment, "which was never required to any contract at common law, was to authenticate and make the security of a higher nature than any other then known; for by this the King, in the person of the mayor, &c., attests the contract and takes conusance of the debt, and consequently execution is to be awarded upon failure of payment at the day assigned, without any mesne process to summon the debtor, or the trouble or charge of bringing in proofs to convict him; for the judges, who are the King's representatives for the more speedy administration of justice, require these on common contracts and specialties to satisfy themselves of the justice and legality of the plaintiff's demands, before they award any execution against the defendant; but to this contract the King himself, by the mayor, warden, &c., is a witness, and has the frank acknowledgment and confession of the debtor that he really owes so much, which is the best and surest proof the law requires; therefore the legislators of that time, out of a just regard to the prerogative and justice of the King on those contracts, as on judgments, allowed of an immediate execution; these being the surest means of conviction, viz., the confession of the conusor on record, which the judges at Westminster seldom have to frame their judgments on; and thus it must be presumed from the force of them, which is equal to judgments of the superior Courts, they obtained the name of pocket judgments."

It will however be observed, that, by the proviso to the Statute of Acton Burnel (k), the "mainpernors or pledges" (sureties) "shall

and Ireland, amongst the which peo-
ple they that will may make such re-
cognizances (except Jews, to whom
this ordinance shall not extend). And
by this statute a writ of debt shall not
be abated and the chancellor, jus-
tices of the one bench and the other,
the barons of the Exchequer and jus-
tices errant, shall not be estopped to

take recognizances of debts of those
who are willing to acknowledge them
before them; but the execution of re-
cognizances made before them shall not
be done in the form aforesaid, but by
the law and manner before used and
otherwise provided in other statutes."
(j) Bac. Abr. tit. Execution, B.
(k) See ante, note to p. 72.

be without damage so long as the debt may be fully taken and levied of the goods moveable of the debtor." Before, therefore, the creditor can have execution against the surety for the amount of his debt so secured, he must be able to show that he cannot recover it from the principal. As against the sureties therefore, both on first principles as well as according to this provision of the statute, a scire facias would appear to be required before proceeding to recover the debt from them, to give them an opportunity of pleading and putting in issue, if they thought fit, the fact whether or no the debtor had available goods for the payment of his debt (1).

If a statute merchant be forfeited by the debtor not paying at the day named within it, if the conusor be within the jurisdiction of the mayor or other officer before whom the statute merchant was acknowledged and be found there, then, upon the conusee's bringing the statute, &c., to the mayor, &c., and clerk, and their finding the record of it and the day of payment lapsed, the mayor may apprehend and imprison the conusor (if he be lay), there to remain until he satisfies his creditor.

If the debtor be out of the jurisdiction of the mayor, &c., then shall he send the recognizance under the King's seal into Chancery, after which certificate the first process is a capias to take his body only; and, if upon this the sheriff returns a cepi corpus, the debtor shall remain in prison a quarter of a year, in which time he may dispose of his goods and lands to the best advantage to pay his debts. But if the conusor either omits to satisfy his creditor in that time, or if the sheriff returns on the capias, non est inventus, or the conusor dead, then shall the execution be granted against lands, goods, and chattels, and they be delivered to the conusee by a reasonable extent till the debt be levied, which writ of execution the sheriff is to return into the Q. B. or C. B., and how he hath performed the service (m).

And if the mayor, the debtor being out of his jurisdiction, will not on the prayer of the creditor certify the recognizance broken into the Chancery under his seal, according to the Statute of Acton Burnel, as he ought to do, then the recognisee may have a writ of execution upon the statute directed to the mayor (n).

(1) See Brunkhorne's case, Cro. Eliz. 233. "For the recognizance as to them is but as an obligation with a condition upon which they might well plead performance." And see Penoyer v. Bruce, 1 Salk. 320.

(m) Bac. Abr. tit. Execution, B, 359; 2 V. Wms. Saund. 71 c, n.; Com. Dig. tit. Statute Staple, D, 3.

(n) Fitzherbert's Natura Brevium, ed. 1794, vol. i. p. 130.

77

Nature of a Statute Staple.

[Br. I. If the conusor is a clergyman he cannot be arrested; but the sheriff is commanded to levy the debt of his moveable goods and chattels by a writ of levari facias (o).

A statute staple is a bond of record acknowledged before the of the staple, in the presence of all or one of the constables of the staple (p), pursuant to the statute 27 Edw. III. st. 2, c. 9; and it is a security the object of which was, in the words of the statute, "that the contracts of merchants made within the staple (or market) shall be the better holden and the payments readily made." Anciently the place where the merchants resorted with their staple commodities was called estapel, which signified mart or market (q). This mart was sometimes established out of the

realm, as at Calais, Bruges, Antwerp, &c.; and sometimes it was held in the kingdom, at London, Westminster, Hull, &c. (r).

These markets were found to be of great use and consequence to the King as a means of revenue, as at these staple ports the King's customs were easily collected by the officers of the staple ; and they also tended to the interest and credit of the nation, as all merchants' goods at these staples were examined and marked by proper officers, who detected and prevented the exportation of decayed and ill-wrought manufactures; and their mark consequently fixed a stamp of credit on the merchandises exported, which upon the view always answered the expectation of the buyer (8).

According to Lord Coke, there were five staple merchandises, viz., "wooll, woolfels, leather, lead, and tynne" (t); others added "butter, cheese, and clothes" (u).

In order more efficiently to carry out the law of the staple in towns not provided with proper officers, &c., to give binding effect to the obligations entered into at these markets, the statute 27 Edw. III. st. 2, c. 21, appointed, "in every town where the staple is ordained, a mayor, good, lawful, and sufficient, having knowledge of the law merchant, to govern the staple, and to do right to every man after the law aforesaid, without favour, sparing, or grief doing to any," together with "two covenable constables to do that pertaineth to their office;" and to the said mayor and constables power is given "to keep the peace, and to arrest offenders in the staples for debt, trespass, or other contract, and them to put in prison and punish after the law of the staple" (x).

debtor shall be believed upon faith."

(r) 4 Co. Inst. 238. "The bounds of the staple at Westminster begin at Temple Bar, and extend to Tuthill. In other cities and towns within the walls; where no walls be, the bounds of the staple shall extend through all the city or town."

"

(s) Bac. Abr. tit. Execution, B, 356; Gilb. Ex. 218. 'Edward I., in the 27th year of his reign, appointed staple towns round England, Wales, and the Pale of Ireland."

(f) 4 Co. Inst. 238.

(u) Bac. Abr. tit. Execution, B, 356. See also Gilb. Ex. 219. "Wool, woolfels, leather, and lead were to be

that brought to the staple, and to be trans

ported by foreign merchants; and it
was felony for any English, Welsh, or
Irishman, to transport these articles.
By this means all the wool of the king-
dom came under the King's duty."

(x) 4 Inst. 237; Gilb. Ex. 219.
"The staple had a judicature apart,
and if any of the King's justices or
other officers came into any of these
places where the staple was, they had
no authority in matters pertaining to
the cognizance of the mayor and mi-
nisters of the staple in that place, either
judicial or ministerial; and this is the
reason we have so little concern in mer-
cantile affairs in the old books."

80

Mode of Execution on.

[Br. I. By these statutes the mayor of the staple was empowered “to take recognizances of debts which a man will make before him, in the presence of the constables of the staple, or one of them," under a "seal ordained, remaining in the custody of the mayor under the seals of the constables." If such a recognizance were forfeited, the mayor of the staple, on application made to him, had power to arrest and imprison the debtor and seize his goods, which were to be sold or delivered to the creditor by a "true estimation" to satisfy his debt; and, if the debtor were not found in the staple, or his goods were not sufficient, then the mayor certified this under seal to the Chancery, upon which certificate a writ issued out of Chancery to arrest the debtor without privilege of bail, and to seize his lands, goods, and chattels, wherever found (y).

Immediate execution was therefore given by these statutes against the debtor's body, lands, and goods. This writ was returnable into Chancery only (z). After the extent made, the practice was to sue out a writ of liberate out of Chancery, reciting the former writ and return, and commanding the sheriff to deliver to the conusee all the lands, tenements, and chattels taken into the King's hands, if the conusee will have them by the extent and appraisement made thereof, until he should be satisfied his debt (a).

This power was given to merchants, "lest they should be diverted and drawn from their business and trade by applying to the common law and running through the tedious forms of it, for a determination of their differences; and for the greater encouragement of merchants, that they might have all imaginable security in their contracts and dealings, and the most expeditious method of recovering their debts without going out of the bounds of the staple" (b).

In time, however, other persons besides merchants of the staple began to resort to these securities in their contracts, and the mayor and constables would take recognizances from strangers, surmising that they were made for the payment of money for merchandises brought to the staple. To prevent this mischief the Parliament, by stat. 23 Hen. VIII. c. 6, s. 11, reduced the statute staple to its original limits, and imposed a penalty of 401.

(y) See stat., n. ante.

(z) 4 Inst. 79; Com. Dig. tit. Stat. Staple, D; F. N. B. 131; Cro. Car. 451.

(a) 2 Tidd's Prac. 8th ed. 1136;

Com. Dig. tit. Stat. Staple, D, 6; Lut. 432; Dyer, 67 b.

(b) Bac. Abr. tit. Execution, B,

356.